The history of liberty has largely been the history of the observance of procedural safeguards. — Supreme Court Justice Felix Frankfurter in 1943
When it comes to the Constitution who cares about process, really? Constitutional scholars who study, teach, think and write about it, for sure, as well as the lawyers and judges who have to interpret it to win cases for clients. But for most of us, the majority who make up “We the People,” the Constitution is about rights, right?
Rights Are the Stars of The Show
After they voted in the 2016 presidential election, many women in, and around Rochester, New York, visited the gravesite of Susan B. Anthony and affixed their “I Voted” stickers to her headstone, covering the marker with their quiet expressions of gratitude to the woman who had died in 1906, never seeing the success of her fight for women’s voting rights.
The 2016 presidential election also marked the first time in the history of the United States that a woman led the ticket of one of our two major political parties. And on that cold November day in upstate New York, on that milestone, for those women of Rochester and for millions of others throughout our land the suffragettes of the 1800s and the early 1900s were their Greatest Generation. These courageous women had worked tirelessly for almost 70 years, starting in the 1850s, to secure every American woman’s right to vote.
Campaigns for rights are that powerful. Rights are clear, unambiguous. Rights are personal. You have them or you don’t. In America’s persistent quest to form a more perfect union, groups of citizens have been working on enshrining individual rights in our Constitution since the 1780s. Those efforts continue today.
Campaigns about rights stir the soul and focus the mind, both for and against. The issues involved seem clear. They produce fiery rhetoric, passions, and often violence. They are marathons of long-term persistence that wear down and wear out opposition.
When enshrined in our Constitution, declarations about rights are permanent contracts between the government and the governed, setting forth both authorities and limitations. Some are very specific, while others like the 10th Amendment, are more sweeping and general.
Power Through Process
There is a second, less dramatic but potentially much more important method by which the Constitution carefully defines and allocates federal governmental power. That allocation of power derives from imperatives of process, imperatives, that in our civics classes, we learned to call checks and balances.
Process instructions are often of much less interest to citizens because process issues do not appear to affect us very much, even when they really do.
For example, when John F. Kennedy was assassinated, Vice President Lyndon Johnson became president of the United States. The vice presidency remained vacant for the next 14 months, until the 1964 presidential election, because there was no process set forth in the Constitution to fill a vacant vice president slot between elections. Since the need for a sitting vice president to accede to the presidency arose so infrequently, there seemed to be no rush to fix this particular absence of process. But, in February 1967, the 25th Amendment was adopted quietly and without fuss setting forth the process we employ today. It says, in part, “Whenever there is a vacancy in the office of the vice president, the president shall nominate a vice president who shall take office upon confirmation by a majority vote of both houses of Congress.”
And it is a good thing it was decided because just seven short years after its adoption, the new 25th Amendment process was needed. Not once, but twice.
The first time it was used Gerald Ford was appointed by President Richard Nixon and confirmed by the House of Representatives to replace Vice President Spiro Agnew, who had resigned. The second time it was needed was when Richard Nixon himself resigned. Then-Vice President Ford became president, and Nelson Rockefeller, appointed by President Ford and confirmed by the House of Representatives, became vice president.
This was the first and, so far the only, time in our history that neither our president nor vice president had been elected by the people. Had there not been the 25th Amendment, the turbulence of President Nixon’s brief second term might have been much more challenging to our constitutional system than it turned out to be.
A few short years later, Americans also witnessed two attempted assassinations, of Presidents Ford and Reagan, each of which was a close call. We narrowly avoided needing the 25th Amendment again.
Many process issues are very important. And the founders knew it. The genius of our founders enabled them to produce a Constitution filled with important process instructions that have helped produce a functioning government for our republic for more than two centuries. It is a testament to the effectiveness of their work that new process issues do not come up very often, and when they do they can often be resolved by debates among elected officials, as was the case with the 25th amendment, rather than by some sort of national campaign and plebiscite.
We Need a Process to Process Our Money
But now we have a process challenge different than most we have faced in our history. And, unfortunately, the old way of securing process changes to our Constitution is unlikely to work the way it has in the past.
Our Constitution says very little, almost nothing, about how federal officials must care for or process our money. Taxpayers currently send the federal government about $4 trillion per year and, yet, there are almost no rules at all about what our elected officials can do with it, how they must protect it, or how they must account for it. Nor are they prevented from spending more than the amount of revenue they take in.
Lacking Constitutional constraints, Congresses, over many decades, have massively run up our accumulated national debt with no end in sight. They’ve also created a massive and unmanageable tax code, unfunded liabilities for social programs, and more.
This is an overarching problem that is unlikely to be resolved without a grass-roots movement. Federal officials have been aware of the growing debt situation for about 80 years and have done nothing about it. Members of Congress know the national debt is getting worse and most even recognize that it needs to be addressed. But, as demonstrated most recently by the $2 trillion coronavirus stimulus bill that will be added to the national debt, there always seems to be an emergency, a higher policy priority, a war, or some other reason to ignore the national debt and spend more money right now.
However impossible the task of amending the Constitution seems in today’s political climate, it is worth at least envisioning some crucial process imperatives that could help control and improve the financial management of the vast sums of money that taxpayers send the federal government and the expenditures and regulations that flow from Washington, D.C. Basically, we need a “bill of responsibilities” — five brief, effective, financial management amendments to guide federal budgeting and spending. These amendments don’t need to be lengthy or complex, and, in future posts, I’ll discuss each of them in detail.
The same passion, devotion, commitment, fervor and stamina that has been brought to important campaigns about rights could be used to bring about critical process changes that make politicians accountable for how they use taxpayers’ money. It would undoubtedly require a long, sustained effort to persuade large numbers of taxpayers and politicians that critical process changes about spending and regulation matter to all of us as individuals. But it is increasingly clear, we the people have to do it or it will not get done.